Earlier this week, in a suit brought by the beautifully named People for the Ethical Treatment of Property Owners, Judge Dee Benson ruled that the United States Fish and Wildlife Service could not regulate takes of the Utah prairie dog on private land. Relying on the Supreme Court decisions in United States v. Lopez and United States v. Morrison, the court conclude that, because the Utah prairie dog exists only Utah, and because it is a homely little creature that does not stimulate tourism and is not yet known to be of any medical or scientific value, any impact on interstate commerce is too remote and attenuated to justify federal regulation.
I’m not buying it. Notably, while the court acknowledged that the FWS had pointed to five separate appellate decisions rejecting constitutional challenges to ESA protection of solely intrastate species, the Court did not come to grips with any of those other holdings; addressing instead only the arguments made by the FWS in this case. Indeed, the Court did cite to one of the cases, GDF Realty Investments v. Jones, to support its conclusion that potential future impacts on commerce are not sufficient to justify regulation. While the Court acknowledged that the GDF Realty decision in fact supported regulation, it did not discuss the GDF Realty’s holding or rationale.
GDF Realty upheld FWS authority on the ground that takes of multiple individually insignificant endangered specifies may, in the aggregate, affect interstate commerce. As the court there stated, the FWS:
maintains that takes of any species threaten the “interdependent web” of all species. Congress described this “critical nature of the interrelationships of plants and animals between themselves and with their environment”. In fact, according to Congress, the “essential purpose” of ESA is “to protect the ecosystems upon which we and other species depend.
Our analysis of the interdependence of species compels the conclusion that regulated takes under ESA do affect interstate commerce.
I don’t see the 10th Circuit saying anything different. Absent a circuit split, I don’t see the Supreme Court taking the case, though I wouldn’t rule that out. If that were to happen, PETPO – not as beautiful as an acronym – might win, but I’d actually expect the Supreme Court to give Chevron deference to FWS’s view that it is inappropriate to look at the isolated impact of individual species, rather than the cumulative impact of takes on all endangered species.